Don’t trigger Article 50 – just leave
Professor of international law Ingrid Detter de Frankopan believes the UK shouldn’t engage with the EU about leaving. It should just unilaterally withdraw.
Despitemy best attempts, says professor of international lawIngrid Detter de Frankopan, everyone has been deaf to the painstakingly simple course for the United Kingdom to take: don'ttrigger Article 50 at all.
Second rate lawyers are misleading everyone in the country by insisting that, in order to leave the European Union it is essential to "trigger" Article 50 in its entirety. This line has been swallowed whole by the government, the media and commentators. It is, however, absolute nonsense. Under international law and under Article 50 (1) itself, only notice to leave is necessary.
The horror that I feel about this misdirection is compounded by that the fact that if Article 50(2) is triggered' it implies that the UK government accepts that the EU will decide the conditions of UK's withdrawal. This has serious consequences. An arbitrary two-year negotiation window; a supreme agency problem between negotiating parties (the European Commission and various powerful governments) and a ratification process that is far from certain. All the while we will be contributing approximately £40bn gross, or £20bn net, to the European project. We will be paying for them to negotiate and once we get to the end of the timeline there will be no real incentive to reach prompt agreement, as well as no reason to be true to their negotiated position. In fact any excuse of an election, a financial crisis or a small war could derail years and millions of man-hours of work.
Now turn this situation on its head. The United Kingdom withdraws from the European Union (as directed by the people of the country in the referendum of June 2016) in March 2017 with immediate effect. The European Union loses almost 14% of its revenues overnight. I suppose our mission / delegation will be received with a great deal more alacrity then they would otherwise. This would turn the screw on the Commission and force them to conclude negotiations rapidly. It would give them less of a chance to strike back, ask for an "exit" premium and force a rapid conclusion on all parties. While it is true that this could descend into a tariff war it is likely that we would end up with this situation at the end of two years anyway. There is the Commission, 27 other governments with diverse objectives ranging from using Britain's exit to foster greater unity or to underline the need for retaining sovereignty within the Union.
Most organisations have provisions for withdrawal of members in their constitutions. Should such provisions be lacking, there is still an implied power of member to leave. Every international organisation is founded on a multilateral treaty signed and ratified by its initial members. Other members may later join by accession to this treaty. But the treaty of an organisation has a double function: it is both a contractual agreement between the initial and later members as well as a constitution of the organisation they have created. But when there is a clause allowing a member state to withdraw, there is a further contractual aspect. In such a case the constitution of an organisation is coupled with a contractual right to withdraw from the established organisation.
To withdraw from an organisation is an implied condition in the founding constitution, in the same way as the organisation enjoys implied powers to achieve the purposes for which it was created. But the current member states of the organisation remain its masters: they are free to amend the constitution, to extend or reduce the organisation or to abolish it should they so wish. Any member who longer wishes to be a member is always entitled to leave. Thus, there is always a unilateral right to withdraw from an organisation.
The European Communities, later the European Union, lacked such provisions before the Lisbon Treaty inserted Article 50 to cater for states that wished to leave. But this article has been disastrously misunderstood by the numerous commentators that now consider themselves experts in the constitutional law of the European Union.
In a sense, some states have left the European Communities/EC/EU, but this has happened so far only in certain very exceptional situations: Algeria left after its independence from France in 1962. After a referendum in Greenland in 1985, this "autonomous country" that is still under Danish sovereignty left the EC. Greenland was concerned about the overfishing by other European countries in its waters. Saint-Barthlemy, a former French colony in the Caribbean, left on its own demand when it attained independence, separating from Guadeloupe in 2007, and was converted into an associated overseas territory with effect from 2012.
Some of those who have so far commented on the possible interpretation of Article 50 have been misled by attempting comparisons with "divorce" settlements. Others have, quite rightly, considered it necessary to have recourse to the Vienna Convention on the Law of Treaties of 1969. But a closer look at Article 50 makes us realise that the Vienna Convention is not really relevant in this context: it only applies if there is no provision for withdrawal in a Treaty; and there is, precisely in Article 50.
Why is it then so difficult to accept that Article 50 should be read and understood as it is phrased? Indeed, if we refer to the Vienna Convention in that context, we know that article 31 emphasises that
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
I have learnt to be suspicious of the European Union. I did set out much that had been little known about EU's secret plans and projects in my recently published book The Suicide of Europe. Now I have been put on notice again. I asked myself why would the EU be to keen for the UK to leave at once?
Immediately after the UK referendum on 23 June 2016, the president of the European Parliament, Martin Schultz, insisted, the UK government should contact the EU by Tuesday 28 June to indicate its intention to leave. Why this haste? I should have thought the EU would be pleased to receive a massive sum every week from the UK whether or not it is exactly £375m or £166m after rebates and paybacks or any other sum; in any event it is a large sum.
Why would the EU not be happy to accept this for as long as possible? Could it have something to do with Article 50? Well, before the Lisbon Treaty there was actually no right at all to leave the then EEC. (Article 312 EC, Article 51 TEU, and Article 208 of the EURATOM Treaty, all concluded for an unlimited time) This would seem to confirm the actual, real (but fairly secret plan to turn the EEC/EU into an irreversible federation. There were no provisions for exit in the earlier treaties. But there was a surge of protests from various member states, from academics and from courts, that it is not possible to keep sovereign states in an organisation against their will.
There was an important judgment by the German Constitutional Court affirming the right to leave the EEC whatever the Treaties stipulate: Maastricht Urteil (BVerfGE 89, 155 of 12 October 1993). The court stated that the states are still "the masters of the treaties" and can always decide to abandon the organisation, revoking their acts of accession by a contrary unilateral denunciation. After severe criticism from many quarters of the federalist agenda, it was finally agreed to include a clause on withdrawal in the planned EU constitution. When this was not ratified the clause was incorporated in the Lisbon Treaty. The withdrawal clause confirmed that the EU is not (yet) a federal state.
Again, the German Constitutional Court confirmed in the Lisbon Urteil (BVerfG, 2 BvE 2/08 of 30 June 2009) that the EU even under the Lisbon Treaty, is not (yet) a federal state. Therefore, constitutional safeguards of national identity still exist in the EU.
As an aside, the Lisbon Treaty is not easily accessible as I have learned from scouting around for an official comprehensive copy that includes all modifications. The version of the Lisbon Treaty on the UK government's website has a tag by the then foreign secretary, David Miliband, that "the text is illustrative and has no legal force"; the version on the EU site says "this version available for information only". I then sent a formal request under the Freedom of Information Act to the FCO asking for an official comprehensive copy but I was told that there was no such copy available at the FCO. I should, I was told approach the government of Italy as that government is the depository of the Lisbon Treaty. Knowing Rome well, I shuddered at the thought of waiting for an official comprehensive copy of the Lisbon Treaty, preferably in English, in the corridors of the Italian Foreign Ministry.
But the Article 50 we do have provides that:
1. Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A member state which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The treaties shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the member state concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing member state shall not participate in the discussions of the European Council or Council or in decisions concerning it.A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a state which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.
Thus, as provided in Article 50(1), a Member State may withdraw without any other conditions "in accordance with its own constitutional arrangements". Since the United Kingdom is singularly fortunate in this situation that there is no written constitution, the UK is clearly free to act in any way it sees fit and proper. It is important to stress that there is no need for any agreement at all with the EU. (The UK is also fortunate not to have the euro as a withdrawal for the eurozone states is much more complicated).
The option is there under article 50 (2) to negotiate further relationships with the EU. But we may not wish to do that. It may even be extremely unwise to do so. Nor are we obliged to discuss anything. But if we do start engaging under article 50(2) we may live to regret that as the EU can drag out such negotiations endlessly. The EU might even introduce new conditions and requirements.
Under article 50(3) the treaties will only cease to apply from the date of the withdrawal agreement "or, failing that, two years after the notification referred to in paragraph 2,". This implies that there may not be any "withdrawal agreement" in which case the two year period becomes relevant. But if the UK only exercises its right to withdraw from the EU under article 50(1) there is no need for any "agreement".
In the media I see endless comments and discussion about who is going to be in the negotiating team' in Brussels. Have the UK's leading politicians not yet learned that by entering at all in such discussions we just show our weakness: we have the right to leave and the EU has no right to stop our immediate exit not to impose any conditions. So the notice under article 50(2) is sheer folly. Are the "experts" so wrong in their predictions about the referendum that have indoctrinated everyone about the need to "trigger" and the need to "negotiate"? Could there be some self-interest there for the experts to be consulted?
Under international law and under the Vienna Convention on the Law of Treaties of 1969 the UK is entitled to leave by mere notice under article 50(1). There is no need to "trigger" further agreements or discussions with the EU. The UK even has the right to leave at once.
Since law, medicine and even politics are all based on common sense it would seem to me that the main and urgent issue is to disentangle ourselves as soon as possible from the rules and regulations of the EU. Why would we want to engage and discuss "trade deals". What trade deals? The EU has taken years and years to negotiate a string of trade deals that are not even that advantageous to the UK. Surely the UK could just start its own trading under other arrangements? As an expert on treaty law, I fail to understand why you need any "trade agreements" to trade? I agree with businessmen like Tim Martin of Wetherspoon and Lord Bamford of Bamford JCB that to trade you just trade.
Another fallacy I see in the daily press is that "staying in the single market implies a duty to accept free movement of labour". Why? There is no organisation called "The Single Market". EFTA was and still is a free trade area but certainly without any free movement of persons. The EEC/EU was established as a customs union and then adopted free movement of goods, money and persons as basic non-negotiable rules.
But the UK is leaving this customs union, allowing the possibility for truly international trade world-wide. The discrimination against developing countries outside the EU, many members of the British Commonwealth, will cease. The EU dumping in such countries will be reduced by absence in such despicable schemes by the forceful UK.
We should be suspicious: the haste on the part of the EU is surely due to the urge for the UK to "trigger Article 50" as the expression now goes. Nothing obliges the UK to "trigger" anything short of notifying the EU under article 50(1) that it is leaving. To trigger' article 50(2) we leave ourselves again in the uncertain but domineering hands of the EU.
The word "guidelines" in that paragraph illustrates that we are not talking about any compulsory rules or any compulsory procedure. It is article 50(1) that gives the United Kingdom as definite and unconditional right to leave the European Union. We should be circumspect in entering in further discussion and fear the EU pretending to be bearing gifts. Dona ferentes has historical lessons to teach us. The EU needs the UK far more than the UK needs the EU and we have nothing to gain from "discussions" or further "agreements" unless such agreements are with non-EU states such as the United States, India, Brazil and China. There is the future.
Ingrid Detter de Frankopan is a professor of international law and holds three doctorates, one specifically on European law. She is the author of The Suicide of Europe available on Amazon